THE HEARING. ART 123 TRIAL TO BE FIXED.


Section 1-
The hearing Art.123-Trial to be fixed.


When the charge has been filed under Art. 109, the court shall forthwith fix the date of trial and cause the accused and the public prosecutor to be summoned to appear on the date and at the time fixed by the court. It shall take such steps as are necessary to secure the attendance of the accused, if in custody.

 

Art.124-Witness summonses.

 

(1) So soon as the date of the trial has been fixed, the public prosecutor and the accused shall give the registrar a list of their witnesses and expert, if any, whose presence is necessary. The registrar shall forthwith issue summonses in the form prescribed in the Third Schedule to this Code.

(2) The public prosecutor and the accused shall be responsible for ensuring the all exhibits to be produced at the trial shall be in court on the day fixed for the trial.

 

Art.125-Bench warrant.

 

Where an accused person or a witness, who has been duly summoned and there is proof of service of such summons, has failed to appear as required, the court may issue a bench warrant and such accused person or witness shall be brought before the court be the police.

 

Art.126-Opening of hearing.

 

(1) The court shall sit on the day and at the hour fixed for the hearing.

(2) Where an interpreter is required for the purposes of any proceedings, the court shall select a qualified court interpreter. Where none is available it will select a court shall select a qualified court interpreter. Where none is available it will select a competent interpreter but no person shall be selected who is a relative to the accused or prosecutor or is himself a witness.

(3) The case shall be called and the accused shall be produced.

 

Art.127-Attendace of accused.

 

(1) The accused shall appear personally to be informed of the charge and to defend himself. When he is assisted by an advocate the advocate shall appear with him.

(2) The accused shall be adequately guarded and shall not be chained unless there are good reasons to believe that he is dangerous or may become violent or may try to escape.

 

Art.128-Verification of identity;

 

When the accused has been brought into the dock his identity, age and trade shall be established.

 

Asrt.129.-Reading out of charge.

 

The charge shall be read out to the accused by the presiding judge who shall then ask the accused if he has any objection to the charge.

 

Art.130-Objection to the charge.

 

(1) If the accused has anything to say as to the form or contents of the charge, the provisions of Art.119 et seq. shall apply.

(2) The provisions of Art. 131 shall apply where the accused states:

(a) That he the case is pending before another court; or

(b) That he has previously been acquitted or convicted on the same charge or

(c) That the charge against him has been barred by limitation or the offence with which he been charged has been made the subject of pardon or amnesty; or

(d) That he will be embarrassed in his defiance if he is not granted a suppurate trial, where he is tried with others; or

(e) That no permission to prosecute as required by law has been obtained; or

(f) That the decision in the criminal case against him cannot be given until other proceedings have been completed; or

(g) That he is not responsible for his acts.

(3)where no objects is raised under this Article immediately after the accused has been required by the court to state his objections, the accused shall be barred from raising any such objection at any later stage in the trial, unless objection be such as to prevent a valid judgment being given.

 

Art.131-Settlement of objections.

 

(1) The court shall take down any objection that may have been raised under Art.130 (2) and shall ask the prosecutor whether he has any statement to make in relation to such objection.

(2) The court shall decide forthwith on the objection where the objection can be disposed of by reference to the law or the facts on which the objective is based are not disputed by the prosecutor.

(3) Where a decision cannot be made forthwith owing to lack of evidence. The court shall order that the necessary evidence be submitted without delay.

(4) The court shall make its decision forthwith upon the necessary evidence having been produced.

 

Art.132-place of accused.

 

(1) After the charge has been read out and explained to the accused, the presiding judge shall ask the accused whether he pleads guilty or not guilty.

(2) Where there is more than one charge the presiding judge shall read out and explain each charge one by one and shall record the plea of the accused in respect of each charge separately.

(3) The plea of the accused shall be recorded as nearly as possible in the words of the accused.

 

Art.133-Plea of not guilty.

 

(1) Where the accused says nothing in answer to the charge or denies the charge, a plea of not guilty shall be entered.

(2) Where the accused admits the charge with reservations, the court shall enter a plea of not guilty.

 

Art.134-Plea of guilty.

 

(1) Where the accused admit without reservations every ingredient in the offence charged, the court shall enter a plea of guilty and may forthwith convict the accused.

(2) Where a plea of guilty has been entered, the curt may require the prosecution to call such evidence for the prosecution as it considers necessary and may permit the accused to call evidence.

 

Art.135-Amendment of plea.

 

(1) Where a plea of guilty has been entered and it appears to the court in the course of proceedings that a plea of not guilty should have been entered, the court may change the plea to one of not guilty.

(2) The conviction, if any, shall then be set aside.

Section 2-Evidence and judgment

 

Art.136- opening of case of calling of witnesses for prosecution.

 

(1) After the plea of the accused has been entered, the public prosecutor shall open his case explaining shortly the charges he proposes to prove and the nature of the evidence he will lead. He shall do so in an impartial and objective manner.

(2) The public prosecutor shall then call his witnesses and experts, if any. The witnesses and experts shall be sworn or affirmed before they give their testimony.

(3) They shall be examined in chief by the public prosecutor, cross-examined by the accused or his advocate and may be re-examined by the public prosecutor.

(4) The court may at any time put to a witness any question which appears necessary for the just decision of the case.

 

Art 137- Form of questions put in examination-in-chief.

 

(1) Questions put in examination-in chief shall only relate to facts which are relevant to the issues to be decided and to such facts only of which the witness has direct or indirect knowledge.

(2) No leading question shall be put to a witness without the permission of the accused or his advocate of the public prosecutor, as the case may be.

(3) Question put in cross-examination shall tend to show to the court what is erroneous, doubtful or untrue in the answers given in examination- in chief. Leading question may be to a witness in cross-examination.

 

Art.138-Atecedents accused.

 

(1) Unless otherwise expressly provided by law, the previous convictions of an accused person shall not be disclosed to the court until after he has been convicted.

(2) The previous convictions of an accused person shall not be included in the record of any preliminary inquiry.

 

Art.139-Re-examiniation.

 

The public prosecutor, the accused or his advocate may on re-examination only ask questions for the purpose of clarifying matters which have been raised in cross-examination.

 

Art.140- Absence of cross-examination.

 

Failure to cross-examine on a particular point does not constitute an admission of the truth of the point by the opposite party.

 

Art.141- Acquittal of accused when no case for prosecution.

 

When the case for the prosecution is concluded, the court, if it finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, shall record an order of acquittal.

 

Art.142-Opening of case for defence.

 

(1) Where the court finds the t a case against the accused has been made out and the witnesses for the injured party, if any, have been heard it shall call on the accused to enter upon his defence and shall inform him that he may make a statement in answer to the charge and may call witnesses in his defence.

(2) The accused or his advocate may open his case and shortly explain his defence stating the evidence he proposes to put forward. He shall then call his witnesses and expert, if any, who shall be worn or affirmed before they give their testimony.

(3) The witnesses for the defense may be called in any order,

Provided that, where the accused wishes to make a statement, he shall speak first.

The accused may not be cross-examined on his statement but the court may put questions to him for the purpose of clarifying any part of his statement.

 

Art.143-Additional witnesses.

 

(1) The court may at any time before giving judgment call any witness whose testimony it thinks is necessary in the interests of justice.

(2) The prosecution and the accused may call any witness whose name does not appear on the list of witnesses. Such witness shall be summoned where the court is satisfied that he is a material witness and the application for a summons is not being made for the purpose of delaying the case.

(3) The prosecutor may in a case committed for trial to the High Court call any witness who has not given evidence at the preliminary inquiry where he informs the accused in writing of the name of the witness he proposes to call and of the nature of the testimony he will give.

 

Art.144-Depositions taken in preliminary inquire may be put in evidence.

 

(1) The deposition of a witness taken at a preliminary inquiry may be read and put in evidence before the High Court where the witness is dead or insane, cannot be found, is so ill as not to be able to attend the trial or is absent from the Empire.

(2) The deposition of an expert taken at a preliminary inquiry may be read and put in evidence before the High Court although he is not called as a witness.

 

Art.145-Statements made in police investigation may be put in evidence.

 

(1) The court may, on the request of the accused or the prosecutor, refer to statement made by a witness to a police officer in the curse of police investigation.

(2) In may then, if it thinks it expedient in the interests of justice, direct the accused to be furnished with a copy thereof and such statement may be used to impeach the credit of such witness.

 

Art-146-objection to evidence.

 

Where the prosecutor the accused objects to the admission of any evidence or the putting of a question to a witness, the court shall decide forthwith on the admissibility of such evidence.

 

Art-147-Recording of evidence

 

(1) The evidence of every witness shall start with his name, address, occupation and age an indication that he has been sworn or affirmed.

(2) The evidence of each witness shall be taken down in writing by the presiding judge or, if, for some reason, he is unable to record the evidence, by another judge or clerk under his personal direction and superintendence.

(3) The evidence shall be divided into evidence –in chief, cross-examination and re-examination with a not as to where the cross-examination and re-examination begin and end.

(4) The evidence shall ordinarily be taken down in the form of a narrative.

Provided that the presiding judge may, in his direction, take down or cause to be taken down any particular question and answer.

Art.148-Final addresses.

(1) After the evidence for the defence has been concluded the prosecutor may address the court on questions of law and fact.

(2) The accused or his advocate shall then address the court on questions of law and fact. He shall always have the last word.

(3) Where there are more than one accused the presiding judge shall decide in which order the accused or their advocates shall address the court.

Art.149-judgmetn and sentence

(1) When the final addresses including the addresses under Art.156, if any, have been concluded, the court shall give judgment. The judgment shall be dated and signed by the judge delivering it. The judgment shall contain summary of the evidence, shall give reasons for accepting or rejecting evidence and shall contain the provisions of the law on which it is based and, in the case of a conviction, the article of the law under which the conviction is made.

(2) Where the accused is found not guilty, the judgment shall contain an order of acquittal and, where appropriate, an order that the accused be released from custody.

(3) Where the accused is found guilty, the court shall ask the prosecutor whether he has anything to say as regards sentence by way of aggravation or mitigation. The prosecutor may call witnesses as to the character of the accused.

(4) Where the prosecutor has made his submissions on sentence the accused or his advocate shall be entitled to reply and may call witnesses as to character. Where accused does not admit any fact regarding his antecedents, the prosecutor shall be required to prove the same.

(5) The court shall then pass sentence and shall record the articles of the law under which the sentence has been passed.

(6) Nothing herein contained shall affect the provisions of Art.195 and 196 Penal Code.

(7) After delivery of judgment the prosecutor and the accused shall be informed of their right of appeal.

Chapter 5-Private prosecution

 

Art.150-Filing complain and charge

 

(1) Where a private complainant has been authorized under Art. 44 (1) to conduct a private prosecution, he shall within fifteen days file his complaint and the charge in the court having jurisdiction.

(2) Where a charge is not in accordance with the authorization the court shall require the private complainant to amend the charge to confirm to such authorization.

Art.151-Attempt to reconcile the parties.

(1) When the complaint and the charge have been filed the court shall summon the complainant and the accused to appear.

(2) Before reading out the charge to the accused the court shall attempt to reconcile the parties. Where a reconciliation is effected, if shall be recorded by the court and shall have the effect of a judgment.

Art.152- Security for costs.

Where a reconciliation has not affected, the court shall decide whether the private prosecutor should give security for costs. Where an order for security is made, the sum to be secured and the nature of the security shall be stated in the order.

Art.153-Hearing and judgment.

(1) Where the private prosecutor has complied with the order, if any, under Art.152, the case shall proceed in accordance with Art.123-149, the parties having the same rights and duties as in public proceedings.

(2) The court shall give judgment as in ordinary cases.

Chapter 6-injured party in criminal proceedings

Art.154-principle

(1) Where a person has been injured by a criminal offence, he or his representative may at the opening of the hearing apply to the court trying the case for an order that compensation be awarded for the injury caused. The application shall be in writing and shall specify the nature and amount of the compensation sought. He shall not on filing his application pay the prescribed court fees us though it were a civil case.

(2) The person making the application shall be shown the list of the witness to be called by the prosecution and defiance and shall be asked whether he wishes additional witnesses to be called. Where he wishes additional witnesses to be called, he shall be required to pay the prescribed fees for the issue of witness summonses as though it were a civil case.

(3) The provisions of this chapter shall apply to public and private prosecutions

(4) Where the person making the application acts in the capacity of private prosecutor, he shall specify which witnesses he calls in support of the prosecution and which he calls in support of his civil claim. The provisions of sub-art. (1) and (2) shall apply.

Art.155-Application dismissed.

(1) The court shall consider the application and shall of its own motion or on the request of the prosecution or the defence refuse the application where.

(a) A young person is the accused; or

(b) The accused is being tried in his absence; or

(c) The injured party has instituted proceedings in a civil court having jurisdiction; or

(d) The person making the application is not qualified for suing; or

(e) The claim for compensation cannot be determined without calling numerous witnesses in addition to those to be called by the prosecution and defiance; or

(f) The court is of opinion that the hearing of the injured party’s claim for compensation is likely to confuse, complicate or delay the hearing of the criminal case.

(2)The application shall be dismissed where the amount of compensation claimed exceeds the pecuniary jurisdiction of the court.

(3) where the court dismisses the application its decision shall be final and no appeal shall lie against it. The injured party shall be informed by the court that he may file a claim against the accused in a civil court.

Art.156- Application allowed.

(1) Where the application is allowed the injured party shall be entitled to take part in the proceedings and shall have with regard to evidence all the rights of an ordinary party.

(2) The court shall at the close of the case for the defence permit the injured party or his representative to address the court in person or by advocate on the question of the amount of compensation to be awarded. The accused of his advocate shall have the right to reply.

Art.157-injured party may withdraw.

An injured party may at any time before the close of the case for the defence withdraw his application and thereupon he may file a claim against the accused in the civil court having jurisdiction.

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